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Monthly Archives: January 2016

Scattered shoes are displayed at the steps of the United Nations Headquarters in New York as a show of solidarity with interns and young people who are underrepresented around the world. Credit: Sarah Ben-Moussa

On Nov. 10, 2015, a group of unpaid interns, led by the Fair Internship Initiative (FII), demonstrated outside the United Nations Headquarters in New York City in recognition of International Interns Day. As a protest against the United Nations practice of hiring unpaid interns, the group staged a flash mob.

Attendance was uncertain, given the reports of rain for that day, but in the end, approximately 20 interns gathered outside, umbrellas in hand, in front of a row of scattered shoes. They each held signs that collectively spelled out “unpaid is unseen,” a phrase that has been gaining traction in the international intern sphere. In an interview with Alessandro Greppi, an organizer with FII, he explained that the phrase alludes to the lack of representation at the U.N. of young people in developing countries who cannot afford individually to finance an unpaid internship, and whose home states cannot afford to send them. The image of scattered pairs of shoes, similarly, was meant to symbolize all of the young people that were unable to represent themselves.

After the gathering, the interns made their way into the General Assembly building, where they were allegedly stopped by security, who asked them to put away their signs, as protesting is prohibited inside the U.N. itself. Vice News reported that two security guards from the U.N.’s Emergency Response Unit also demanded that the pictures taken by Vice be deleted.

Later that evening, FII hosted a panel on youth employment featuring Ahmad Alhendawi, the Secretary General’s Envoy on Youth; Bettina Hasel, Human Resources Specialist in the UNICEF New Talent Team; Elizabeth Niland, Social Affairs Officer of U.N. Focal Point on Youth; Ian Richards, President of Staff Unions and Associations; and several other representatives and consultants. The panel covered the issue of remuneration for interns, but also focused heavily on other reforms for interns, including reforming the de-centralized nature of internships within the U.N. and the possibility of a scholarship fund for candidates unable to pay their way through the program. Protests against unpaid internships and programs such as these have gained more attention over the past year.

THE RISE OF INTERNATIONAL PROTESTS

The practice of unpaid internships has invigorated protests since news of David Hyde, a 22-year-old intern living in a tent in Geneva this summer, made international headlines. The story was later found to be staged, in an effort to create a documentary on the struggle of unpaid interns. But, many have claimed that the reality is not far off, with demonstrations on International Interns Day taking place around the world in cities such as Geneva, New York, Melbourne, Paris, Chennai, Brussels and Trento. Students and interns have mobilized all over, arguing that unpaid internships at the U.N. go against the very values of the U.N., including non-discrimination and equality.

One of the organizations borne out of the global movement is the Fair Interns Initiative. It started as a weekly meeting of interns, and has quickly gained traction since the summer of 2015, with as many as 30-40 interns attending weekly events In an effort to clarify their demands, the FII specifies in its mission statement that they are seeking needs-based allowances or stipends for interns who are not funded by their university or another institution, fair and equal representation of interns and an intern focal point in the Office of Human Resources Management (OHRM). Their main focus is on securing these policy changes at the United Nations, given its prominence in the international field. They hope an organization such as the United Nations can set a precedent, which many other organizations can follow.

In the meantime, as long as internships remain unpaid, FII said they wish to see a change in the visa granted to interns so they at least may seek part-time work in supporting themselves in their host country, as well as a possibility for basic health insurance provided by the U.N. However, their long-term goal remains the eventual remuneration of interns.

“Unfair, unpaid, is unseen” has become a mantra among the movement for the remuneration of interns, invoking the notion of equal work for equal pay, as well as contesting the representation bias present in many international organizations. Interns gathered outside of the United Nations Headquarters in Geneva Switzerland, to protest the U.N. practice of unpaid internships. Photo courtesy of ILO Intern Board.

VIOLATING U.N. LAWS AND PRINCIPLES

In an interview with FII, Greppi said that the U.N. is failing to uphold the principle of non-discrimination, as articulated in the International Covenant on Economic and Social Rights (ICESR). There is a stark disparity in representation in the U.N. internship program, with most interns hailing from Europe, according to a 2015 report by the Secretary General. By offering only unpaid internships, the U.N. has created a de-facto restriction to internships, limiting access to those who can afford to do unpaid work or are lucky enough to secure outside funding, which tends to be individuals who are either from more affluent or developed nations.

Aside from violating the principle of non-discrimination, FII argues that the unpaid internship program violates the U.N. Charter and the Universal Declaration of Human Rights (UDHR). Specifically, FII wrote in a joint letter to Secretary Ban-Ki Moon on Aug. 14, 2015 that the program violates Article 8 of the U.N. Charter, which states that, “the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.” They argue that the U.N. internship policy places an “indirect restriction” on qualified young people, creating a structural barrier for many. Additionally, they also cite Article 23 of the Universal Declaration of Human Rights, which states that, “[e]veryone, without any discrimination, has the right to equal pay for equal work” and that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Thus, the exclusion of interns under this umbrella is a direct violation of the UDHR, FII said.

In response to the letter and its arguments, the Office of the Secretary General issued a response, explaining that the conditions of service fall into the purview of the General Assembly, and that any change to this policy would require a vote of the majority of the General Assembly.

BALANCING LEARNING WITH COMPENSATION

Despite the backlash against unpaid internships, many have touted the benefits of these experiences. For one thing, there is a tangible benefit gained in experience and connections made through internships, a hiring practice that has existed for several decades. A letter from the U.N. Office of the Secretary-General in response to FII highlighted the fact that while there is no financial compensation, the internship program was designed to enhance the educational experience of interns and allow students to interact with other professionals and interns. The value of first-hand experience in an organization is one that should not be understated.

Scattered shoes are meant to represent the many young people who are unable to represent themselves, says FII. Photo courtesy of ILO Interns Board.

However, in a world where organizations and companies are increasingly relying on unpaid interns to simply get work done, unpaid internships can be exploitative. They can displace paid employees, have interns performing menial tasks and not be beneficial in the employment search process. In the U.S., the Second Circuit Court of Appeals explored how unpaid internships at for-profit companies could be regulated in the landmark ruling, Glatt v. Fox Searchlight Pictures. The court ruled that unpaid internships are legal so long as the interns are the “primary beneficiary.” Among the factors to be considered in making this evaluation, the court highlighted that companies should consider the extent to which internships are tied to an intern’s formal education, the receipt of formal credit and if interns’ work complements or displaces paid employees’ work. Although this ruling may pose a set of problems (i.e. overlooking type of work and overall educational status) and it only applies to the for-profit sector, the legality of unpaid internships in the United States could serve as a standard or starting point for the U.N. and international community, especially in the wake of recent international unrest over unpaid internships, and increasing pressure on member states in the General Assembly to act.

Within the context of the U.N., most internships are offered to those who have obtained or are currently pursuing graduate degrees. While many gain a benefit from the learning experience offered by the U.N., it is often outweighed by the inability of interns to transition out of the intern sphere. Specifically, many interns, both in the U.N. and in other spheres, are facing a barrier to enter the workforce through the existence of what many have deemed to be “perpetual internships,” exchanging one internship for another, often without financial compensation, well beyond an affordable amount of time. With recent budget cuts to U.N. staff, it is even more unlikely that the U.N. will be expanding its entry-level recruitment. In fact, in light of these staff cuts, and without a central regulating mechanism for its internship program, it calls into questions the amount of work interns are expected to complete, and where the line between a learning experience and entry-level type work begins. Further complicating the transition is the fact the U.N. has a six-month hiring freeze, preventing interns from being hired for at least six months after they complete their internship, a practice FII is pushing to eliminate.

Many have argued that unlike multi-million dollar companies, the U.N. does not have the financial resources to pay its interns. While the idea that the U.N. is strapped for resources is not a new one, the inherent problem is the organization’s willingness to paint internship remuneration as a frivolous expense, rather than just compensation for labor. The United Nations, especially in the light of its recent staff cuts, thrives on its internship program, employing over 4,000 interns worldwide. Just compensation for labor should be the U.N.’s first priority.

CHANGES FOR A MODERN JOB MARKET

In honor of International Interns Day, the ILO Interns Board, in conjunction with the Geneva Interns Association, held a panel discussion on the issue of unpaid internships at the International Labor Organization Headquarters in Geneva, Switzerland. Photo courtesy of ILO Interns Board.

A modern jobs market needs a modern approach to internship programs. The United Nations, and many other organizations, needs to fundamentally restructure their internship practices in order to keep pace with the changing job market and the needs of young professionals. It must shift from its practice of ad-hoc unpaid internships, to a far more regulated and centralized paid program, to prevent abuses in the program and to obtain the greatest benefit for both parties.

In reality, this shift may lead to a drastic decrease in the number of interns the organization is able to employ, both due to monetary concerns but also due to the legal difficulty in moving so many young professionals to new countries for such short and frequent periods of time. Paid internships means fewer internships, and fewer internships means more competition. However, this is not necessarily a bad thing. The benefit imposed from creating a more competitive environment for interns ensures the most talented young professionals are being drawn to the organization, a long-term value that the organization has not calculated into their analysis. Additionally, opening the doors to increased representation of developing countries gives a value to the organization, both in perspective and in legitimacy.

The legality of unpaid internships continues to be a hot button topic both within the borders of the United States and in the larger international sphere. The United Nations is at a crucial juncture—its stance on the nature of unpaid internships sets the tone for many states. As an example of the principles and norms in the international community, they bear a responsibility in setting precedent like no other organization. The choice on what to do with that responsibility is in their hands.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

Amaury A. Reyes-Torresis a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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The views expressed on this blog remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School or Fordham University.

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